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5.1-1  Use of Excessive Force (Violation of 42 U.S.C. § 1983) 

Revised to October 8, 2010  

The plaintiff claims that the defendant violated (his/her) constitutional right not to be subjected to the use of excessive force by a police officer. (He/She) brings this claim under a federal law, 42 U.S. Code §  1983, that provides that a person acting under color of state law who violates a person’s rights under the United States Constitution can be held liable for money damages to the person whose rights (he/she) has violated. 

In order to prove this claim, the plaintiff must prove:  

  1. that the defendant was acting under color of state law,

  2. that the defendant engaged in actions that deprived the plaintiff of (his/her) constitutional right not to be subjected to use of excessive force, and
  3. that the defendant’s acts were the proximate cause of the injuries or losses claimed by the plaintiff.

The first element, acting under color of state law, is not in dispute. Police officers get their authority under state law, so they are acting under color of state law when they act in their capacity as police officers. 

The second element requires more explanation. The fourth amendment to the United States Constitution guarantees people the right not to be unreasonably seized by government officials, including police officers. This right is violated if a police officer subjects a person to excessive force. The right of a police officer to stop and arrest a person necessarily carries with it the right to use some degree of physical coercion or contact to effect the arrest. This does not mean, however, that the officer may use excessive amounts of force. 

Force is excessive, and use of such force constitutes a violation of a person’s rights under the fourth amendment, if the amount of force used would not be considered reasonable by a reasonably competent police officer in the circumstances presented at the exact time that the police officer used such force. The test is not whether the defendant thought (his/her) use of force was reasonable, but rather it is an objective standard: would a reasonably competent police officer consider the use of such amount of force under the circumstances at the time the force was used? 

Applying this standard requires careful attention to the facts and circumstances of the case, including the severity of the crime at issue, whether the plaintiff posed an immediate threat to the safety of the officer or others, and whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight. 

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20-20 vision of hindsight. Not every push or shove, even if it may later seem unnecessary in the peace of the courtroom, violates the fourth amendment. Your assessment of reasonableness must allow for the fact that the police officer may have had to make a split-second judgment concerning the amount of force that was necessary in circumstances that were tense, uncertain and rapidly evolving. 

The issue is whether the force used was reasonable, not the officer’s intent or frame of mind. An officer’s bad intentions or hostile frame of mind toward the plaintiff will not make a fourth amendment violation out of the use of force that is a reasonable amount of force under the circumstances. An officer’s good intentions will not make constitutional what is, in fact, an unreasonable use of force. 

[<If the claim is use of deadly force:> In this case, the plaintiff claims that the officer used deadly force, that is, that (he/she) fired (his/her) gun at the plaintiff. The standard is that a police officer may use deadly force in two circumstances. The first is if (he/she) reasonably believes that such force is necessary to defend (himself/herself/others) from the actual use or imminent use of deadly physical force. The second is to prevent the escape of a felony suspect if the officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others.] 

It is these constitutional standards, rather than the text of any state statute or any departmental regulation, that should govern your consideration of this claim. 

The facts are in dispute as to what the circumstances were when the defendant acted. 

<Explain the dispute>

You must determine what the circumstances were, as they presented themselves to the defendant, at the precise time that (he/she) acted. If you find that the defendant was in danger because of some conduct of (his/her) own, the fact that the police officer’s own actions contributed to (his/her) being in danger has no bearing on the issue of whether the force used was excessive. You are simply to determine what the situation was at the time the defendant used force, and whether a reasonably competent police officer would not have used such force under the circumstances at the time. 

The third element that the plaintiff must establish is that the defendant’s use of force was the proximate cause of the injuries or losses that the plaintiff sustained. An injury or loss is proximately caused by an action if that action was a substantial factor in bringing about the injury or the loss. The injury or loss must also be either a direct result or a reasonably probable consequence of the act of the defendant. In other words, the plaintiff must satisfy you that (his/her) injuries or losses were the natural and probable consequence of the defendant’s acts, and that the defendant ought to have foreseen that injury or loss was likely to result from such acts. 

Authority 

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (l989); U.S. Constitution, amend. IV; 42 U.S.C. § 1983. 

Notes 

The most frequent claim of the use of excessive force by police officers is by assaulting an arrestee with fists or objects. Claims of wrongful use of deadly force by firing a gun are also common. This charge is written for the assault situation, with a variation set forth for claims of the wrongful use of deadly force. Where the use of force has resulted in death, the charge will need to be edited to reflect the fact that the claim is brought by a representative of the decedent’s estate, asserting the decedent’s constitutional right. 

The elements of claims under 42 U.S.C. § 1983 are likely equivalent to those for claims of civil damages for violations of the Connecticut constitution, as recognized by Binette v. Sabo, 244 Conn. 23, 710 A.2d 305 (1998), and for violations of the fourth amendment to the United States constitution, as recognized by Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). A number of federal district court decisions have found that the civil claims recognized by Binette and Bivens have the same elements. See Milardo v. Middletown, United States District Court, Docket No. 3:06 CV 01 0712009 (D. Conn. March 25, 2009) and cases cited therein.  Several federal circuit courts have reached the same conclusion for civil claims pursuant to Bivens and 42 U.S.C. § 1983. See Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987); Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir. 1984) (“We assume for a moment that the pleading requirements are identical . . . and that to state a claim under either, [the plaintiff] must allege both that he has been deprived of a right secured by the Constitution, and that the deprivation occurred under color of law.”); Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975).

 


 

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